Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and
Mulally, Judge.[*]

U N P U B L I S H E D O P I N I O N

LANSING, Judge

The Commissioner's representative denied a bus driver's claim for reemployment
insurance benefits, concluding that the driver had failed to make reasonable
efforts to continue his employment with the bus company. We affirm the
representative's decision and reject the driver's claim that his constitutional
rights were violated by the department's procedures.

F A C T S

In May 1996 Leland Jacobs received a traffic ticket while
driving a school bus route for Comfort Bus Company. Shortly thereafter, Jacobs
separated from employment with the bus company. The bus company claimed that
Jacobs had agreed to drive another similar route, but failed to show up for
work or call to explain his absence. Jacobs claimed that he did not receive a
firm offer for another route and that he called the bus company a number of
times but did not receive a call telling him to come to work. The
Commissioner's representative found that continuing work was available, but
Jacobs did not make reasonable attempts to contact the bus company or return
its telephone calls.

D E C I S I O N

I

A separation from employment is voluntary when an employee "no
longer desires to remain in the relationship of an employee with the employer
from whom he has separated." Bergseth v. Zinsmaster Baking Co.,
252 Minn. 63, 66, 89 N.W.2d 172, 174 (1958). We have previously held that an
employee's separation was voluntary when the employee was not discharged and
continuing work was made available to the employee. Danielson Mobil,
Inc. v. Johnson, 394 N.W.2d 251, 253 (Minn. App. 1986).

Whether an employee was involuntarily discharged or voluntarily quit is
usually a question of fact. County Market v. Dahlen, 396 N.W.2d
81, 82 (Minn. App. 1986). The Commissioner's representative's factual findings
may be reversed only if there is no evidence reasonably tending to sustain
them. White v. Metropolitan Medical Ctr., 332 N.W.2d 25, 26
(Minn. 1983).

Jacobs challenges the evidence submitted by the bus company's witnesses. But
the record contains evidence which, if found credible, supports the
Commissioner's representative's finding that Jacobs quit his job by choosing
not to pursue available work. Questions of credibility are resolved by the
Commissioner's representative, not by an appellate court. See Semanko v.
Department of Employment Servs., 309 Minn. 425, 428, 244 N.W.2d 663,
665 (1976). In our review we are not permitted to re-weigh the evidence to
determine where the preponderance lies; rather, we examine the evidence to
determine whether it reasonably supports the Commissioner's representative's
decision. Nyberg v. R.N. Cardozo & Bro., 243 Minn. 361, 364,
67 N.W.2d 821, 823 (1954).

Because evidence that the Commissioner's representative found credible
supports the conclusion that Jacobs voluntarily discontinued his employment, we
are compelled to accept the Commissioner's determination on that issue.
See Cary v. Custom Coach, Inc., 349 N.W.2d 331, 332 (Minn. App.
1984).

II

Jacobs contends that the department's procedures violated his rights
to equal protection and due process. Jacobs claims that he is a member of a
class consisting of persons with limited income and education, whose rights are
unprotected by the department. The department's rules, however, specifically
provide for the protection of parties' rights. See Minn. R.
3310.2921 (1995). There is no evidence in the record that the department
failed to comply with its rules. Contrary to Jacobs's claim that the hearing
was rushed, at the end of the hearing, he replied "no" to the question whether
he had anything further to add. Furthermore, the judge qualified an earlier
statement that he had another hearing scheduled and that the parties should
"move along," by stating: "I can go over a little bit, I went over my last
hearing."

Jacobs claims that he was denied due process because he was denied discovery,
the witnesses were not sequestered, and he did not receive a court trial. The
department's rules state that discovery is authorized and set forth procedures
for obtaining subpoenas and for other discovery of information. Minn. R.
3310.2914 (1995). Jacobs did not seek discovery. In addition there is no
evidence in the record that Jacobs requested that the witnesses be sequestered,
or that such a request would have been futile.

Finally, Jacobs has cited no authority for his claim that the department's
procedures sought to "punish" him without a court trial. See Schoepke v.
Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187
N.W.2d 133, 135 (1971) (ordinarily, court will not consider assignment of error
based on mere assertion and unsupported by argument or authorities). When an
employee has an opportunity to be heard, in accordance with the department's
statutes and rules, due process requirements are satisfied. See Olson v.
Starkey, 259 Minn. 364, 374, 107 N.W.2d 386, 392 (1961).

Affirmed.

[ ]* Retired judge of the
district court, serving as judge of the Minnesota Court of Appeals by
appointment pursuant to Minn. Const. art. VI, § 10.